Court for Baltimore City Case No. 24-C-15-000156
Argued: February 9, 2016
Barbera, C.J. [*] Battaglia, Greene, Adkins,
McDonald, Watts, Hotten, JJ.
attorney discipline action involves a lawyer who, while
representing her clients in separate legal matters, failed to
comply with remedial conditions as required under consecutive
Conditional Diversion Agreements
("CDA") for prior misconduct concerning her trust
account; failed to secure safeguards during an illness to
ensure a timely appeal for her client or otherwise protect
her client's interests in conformance with the Rules of
Professional Conduct; and mismanaged her attorney trust
account by repeatedly accumulating negative balances,
depositing unearned fees, and maintaining improper
Erica S. White, a member of the Bar of Maryland, represented
Keith Fleming ("Mr. Fleming") in a divorce and
custody matter ("Fleming matter") and Karma
Sewell-Carpenter ("Ms. Sewell-Carpenter"), in a
landlord-tenant dispute ("Sewell matter"). Between
March 2012 and November 2013, Respondent was under a CDA with
Bar Counsel for prior misconduct involving mismanagement of
her attorney trust account. Respondent's CDA was later
amended ("Amended CDA"), then subsequently revoked
in April 2014 due to Respondent's non-compliance with the
terms of the CDA. (collectively, "CDA matter").
December 30, 2014, Petitioner, the Attorney Grievance
Commission of Maryland, acting through Bar Counsel, filed
with this Court a Petition for Disciplinary or Remedial
Action ("Petition") against Respondent, based upon
her representation of Mr. Fleming and Ms. Sewell-Carpenter,
non-compliance with the CDA and Amended CDA, and the
mishandling of her trust account throughout this period
("Trust Account matter"). Bar Counsel alleged that
Respondent violated the following Maryland Lawyers' Rules
of Professional Conduct ("MLRPC"): Rule 1.1
(Competence), Rule 1.3 (Diligence), Rule 1.4(a) and (b)
(Communication), Rule 1.15(a) and (d) (Safekeeping Property);
1.16(d) (Declining or Terminating Representation); 8.1(a) and
(b) (Bar Admission and Disciplinary Matters); and Rule
8.4(a), (c), and (d) (Misconduct).
Counsel also alleged that Respondent violated Maryland Rules
16-606.1 (Attorney Trust Account Record-Keeping), 16-607
(Commingling of Funds), 16-609 (Prohibited Transactions), and
Md. Code (1989, 2010 Repl. Vol) § 10-306 of the Business
Occupations & Professions Article ("Bus. Occ. &
Prof.") (Misuse of Trust Money).
Order dated January 9, 2015, this Court transmitted the
matter to the Circuit Court for Baltimore City and designated
the Honorable Edward R.K. Hargadon ("hearing
judge") to render findings of fact and conclusions of
law. On April 17, 2015, both parties participated in a
scheduling conference call with the hearing judge, setting a
hearing for June 24, 2015 at 9:30 a.m. On or about June 22,
Respondent informed the court that she was unable to attend
the hearing due to her representation of a client in a murder
trial that day.
14, 2015, a hearing was conducted. Present were Bar Counsel
and Respondent. Ms. Sewell-Carpenter, Edwin Karr ("Mr.
Karr"), Investigator for the Attorney Grievance
Commission, Anne Deady, Esquire ("Ms. Deady"), the
law practice monitor assigned to Respondent under her Amended
CDA, and Laura Burrows, an attorney who worked with
Respondent on an unrelated matter, testified on behalf of Bar
Counsel. Respondent represented herself and testified. On
September 4, 2015, the hearing judge filed with this Court
findings of fact and conclusions of law, determining that:
(1) relative to the Fleming matter and Respondent's CDA
and Amended CDA violations, she violated MLRPC 1.1, 1.4,
1.15,  8.4(a) and (d), and Md. Rule 16.606.1; (2)
regarding Respondent's false statements and
misrepresentations to Bar Counsel, she violated MLRPC 8.1(a)
and (b), 8.4 (a), (c), and (d); (3) relative to the Sewell
matter, she violated MLRPC 1.1, 1.3, 1.4, 1.16(d), 8.4(d);
and (4) regarding the Trust Account matter, she violated
MLRPC 1.1, 1.15(a), 8.4(d), Md. Rules 16-606.1(a)(1)-(3),
16-607, 16-609(b) and (c), and Bus. Occ. & Prof. §
September 22, 2015, Bar Counsel filed its recommendation for
sanctions, requesting indefinite suspension with the right to
apply for readmission after six months, and took no
exceptions to the hearing judge's findings of fact or
conclusions of law. On September 23, 2015, Respondent filed
general exceptions to the hearing judge's findings and
conclusions, which she subsequently amended on September 30,
2015 and February 9, 2016. On February 9, 2016, we heard oral
argument. Respondent conceded that she engaged in
professional misconduct relative to the alleged charges, but
attributed her actions to illness, recuperation after
surgery, and difficulties experienced as caretaker of her
mother until her death, which collectively impacted her
practice during those periods. For the reasons that follow,
we conclude that Respondent violated MLRPC 1.1, 1.3, 1.4(a)
and (b), 1.15(a), 1.16(d), 8.1(a) and (b), 8.4(a), (c), and
(d), Md. Rules 16.606.1(a)(1)-(3), 16-607, 16-609(b) and (c),
and Bus. Occ. & Prof. § 10-306, and will
indefinitely suspend her from the practice of law in this
State with the right to apply for readmission after six
hearing judge rendered the following findings of fact, which
Respondent's CDA, Subsequent Amended CDA, and the Fleming
was admitted to the Bar of Maryland on November 3, 2007, and
currently maintains a law office in Baltimore, Maryland. On
March 21, 2012, Respondent entered into a one-year CDA with
to Md. Rule 16-736(c)(2)(A),  Respondent acknowledged that she
had engaged in professional misconduct relative to her
representation of Mr. Fleming. Under the CDA, Respondent was
required to review a Continuing Legal Education DVD on trust
account management. However, two months prior to completing
the CDA, Respondent failed to fulfill her obligations due to
a failure to timely deposit funds into her trust account and
to provide client records to Bar Counsel. As a result, on
November 25, 2013, Bar Counsel amended Respondent's CDA
and assigned Ms. Deady as her law practice monitor. The
Amended CDA contained the following conditions:
Respondent will provide [Ms. Deady] with a copy of her
general ledger, individual client ledgers, monthly trust
account reconciliation, trust account statement, and
corresponding cancelled checks on a monthly basis for her
monitor to submit to Bar Counsel for the remainder of the
Respondent will attend a meeting with Certified Public
Accountant/Commission Investigator Charles Miller [("Mr.
Miller")] to review Respondent's financial records
and to discuss Respondent's trust account questions.
Respondent will bring a copy of her general ledger,
individual client ledgers, monthly reconciliation and monthly
trust account statements from the previous three months with
her to the meeting for Mr. Miller to review. Respondent will
set a meeting date with Mr. Miller by no later than seven [ ]
days after the new effective date of the Amended CDA. The
meeting date shall occur within twenty [ ] days of the
effective date of the Amended CDA.
[Ms. Deady] shall be required to attend a formal
hearing/court proceeding with Respondent within two [ ]
months from the new effective date of the Amended CDA and to
complete a client observation form in connection with the
[Ms. Deady] shall continue to provide reports to Bar Counsel
on a monthly basis and submit each report on the 30th day of
the month. In addition, Respondent shall meet with [Ms.
Deady] on a monthly basis on the twentieth [ ] day of each
month. During the meeting, Respondent shall discuss her
Amended CDA in detail, provide any needed trust account
records and/or billing documentation to the monitor, and to
submit her written report of her biggest challenges and/or
goals/accomplishments for the month.
Respondent's Amended CDA shall remain in effect until
July 31, 2014.
Respondent's Interactions with Ms. Deady
admitted that during November 2013 through February 2014, she
failed to provide the information to Ms. Deady and Mr. Miller
regarding her general ledger, individual client ledgers,
monthly reconciliation, trust account bank statement, and
corresponding cancelled checks on a monthly basis. On
November 8, 2013, Respondent met with Ms. Deady in her law
office, to review her files. Respondent promised to submit
copies of her client ledgers, trust account reconciliation
statements, and trust account bank statements per CDA
requirements by November 20, 2013. Due to Respondent's
other commitments,  Ms. Deady did not timely receive the
proper documents for her November 2013 report to Bar Counsel.
Deady submitted her second monthly report to Bar Counsel on
January 10, 2014, which reflected that she contacted
Respondent on January 6, 2014 for the required documents.
However, Respondent advised that she was unable to comply due
to scheduled surgery that same day. Although Respondent
promised to provide the documentation after her recuperation,
she did not.
Deady left a voicemail for Respondent on January 30, 2014. In
Ms. Deady's third monthly report to Bar Counsel, she
advised that Respondent had not contacted her since January
6, 2014. Bar Counsel granted Respondent an eight-day
extension to submit her documentation to Ms. Deady. Ms.
Deady's fourth monthly report to Bar Counsel on February
28, 2014, reflected that she contacted Respondent on February
25, 2014 to schedule an appointment on February 27, 2014, and
noted Respondent's failure to provide any documents or
meet with her since November 2013. However, Respondent was
unable to meet with Ms. Deady on February 27, citing a need
to prepare for a motion and complications from her surgery.
Respondent's Interactions with Attorney Grievance
Commission Investigator, Mr. Karr
February 2014, Mr. Karr contacted Respondent regarding the
impending revocation of her Amended CDA. Mr. Karr conducted
an interview of Ms. Sewell-Carpenter on March 6, 2014, but
received no response from Respondent after leaving voice
messages on March 7 and 10, 2014. On March 11, 2014, Mr. Karr
contacted Respondent and scheduled an interview for March 25,
2014, at 11:00 a.m.
the hearing, Mr. Karr testified that Respondent attempted to
cancel the interview, citing an impending trial and inquired
whether he could provide her with written questions in
advance. Mr. Karr directed her to Assistant Bar Counsel
JaCina Stanton ("Ms. Stanton"). Mr. Karr and Ms.
Stanton subsequently cancelled the interview and agreed that
Respondent could provide a statement under oath.
Respondent's Failure to Protect Client's
light of Respondent's upcoming surgery and anticipated
recuperation period, Ms. Stanton requested information from
Respondent on November 26, 2013 regarding the status of her
cases scheduled for January 2014. In a reply e-mail sent on
December 5, 2013, Respondent stated:
I have already discussed the matter with most of my clients
and am in the process of discussing it with the rest. I have
already addressed the issue of court dates as I have
explained to the [c]ourt what my situation is and requested
court dates in accordance with my expected return to work. I
also advised the [c]ourt that I will notify them if anything
changes or I need more time. . . .
January 24, 2014, Ms. Stanton requested that Respondent
provide further information regarding three separate cases
that were scheduled for jury trial. Although Respondent
indicated that she postponed the cases, they nonetheless
remained on the docket for trial. Contrary to
Respondent's December 5 e-mail that she was communicating
with her clients about their cases, she failed to advise Ms.
Sewell-Carpenter about her pending hearing scheduled for
January 24, 2014. On March 17, 2014, Respondent informed Bar
Counsel that she contacted her clients and the court
involving her cases, without providing an explanation
regarding the trial date in the Sewell matter.
December 3, 2005, Ms. Sewell-Carpenter signed a commercial
lease agreement with ELT Corporation to rent space for a
dance studio she operated named Karma's Dance Factory.
Rachel Oziel ("Ms. Oziel") and her husband, Madgi
Oziel owned ELT. On or about September 4, 2012, Ms. Oziel
filed suit against Ms. Sewell-Carpenter on her own behalf, in
the amount of $5, 997 in the District Court for Baltimore
County for failure to pay rent. (Oziel v. Sewell,
Case No. 080400197772012). On November 27, 2012, the District
Court entered judgment against Ms. Sewell-Carpenter in the
amount of $6, 907.
during November or December 2012, Respondent discussed
possible representation with Ms. Sewell-Carpenter. Ms.
Sewell-Carpenter advised Respondent of the November 27
judgment, but Respondent never recommended that Ms.
Sewell-Carpenter file an appeal or a motion to revise
judgment within thirty days. During the disciplinary hearing,
Respondent indicated that she thought she had ninety days to
seek an amended or revised judgment.
February 23, 2013, Ms. Sewell-Carpenter formally retained
Respondent after submitting two credit card payments totaling
$1, 500. That same day, Respondent sent Ms. Sewell-Carpenter
an e-mail, outlining the legal services that she would
provide, but did not address the likelihood of success. Ms.
Sewell-Carpenter never responded to the February 23
e-mail or executed a retainer agreement.
February 26, 2013, Respondent filed a "Motion to Set
Aside Judgment" ("Motion to Set Aside"),
ninety-one days after the judgment was entered against Ms.
Sewell-Carpenter, based on fraud, mistake or irregularity.
The motion was denied on March 13, 2013. Respondent also
filed a "Motion for Reconsideration" of the denial
of the Motion to Set Aside. During the hearing on June 11,
2013, Respondent neglected to bring Ms.
Sewell-Carpenter's file. The court subsequently denied
the motion. Throughout this period, Respondent never provided
Ms. Sewell-Carpenter with copies of the motions filed on her
behalf. Although Respondent advised Ms. Sewell-Carpenter that
she would send a copy of her file, she did not do so until
December 2013, two months after Ms. Sewell-Carpenter filed a
complaint with the Attorney Grievance Commission against
Respondent on October 8, 2013.
November 27, 2013, Ms. Sewell-Carpenter filed a Motion to
Vacate Judgment pro se. A hearing on the matter was
scheduled for January 24, 2014. Ms. Sewell-Carpenter was
officially notified of a motions hearing and notice was also
sent to Respondent, who remained counsel of record.
Respondent claimed that she was absent from her law office
throughout the month of January due to illness, neglected to
check her mail, and never implemented forwarding procedures
during her period of recuperation.
Respondent's representation of Ms. Sewell-Carpenter ended
in June 2013, she failed to file a motion to strike
appearance with the court. Ms. Sewell-Carpenter's motion
was subsequently dismissed for her failure to appear for the
hearing on January 24. As a result, her wages were garnished
in the amount of $6, 907 to satisfy the judgment. On February
11, 2014, Ms. Sewell-Carpenter's subsequent motion to
reset a hearing date was denied. Respondent did not file a
motion to withdraw her appearance as counsel until March 11,
Trust Account Matter
Counsel subpoenaed Respondent's trust account bank
statements from December 2012 to March 2014. During the
hearing, Respondent conceded that she had not maintained
accurate records or retained checks for her trust account
during this period. Between May and July 2013, attorney's
fees for two unspecified clients were applied to negative
balances. Respondent was unable to identify the particular
clients whose funds were affected by the negative balances.
2013, Respondent made a cash withdrawal and subsequently
wrote a check payable in October 2013 from her trust account
without a memo, both in the amount of $50.00. Respondent also
wrote a check payable to "Cash" in the amount of
$420, with a memo indicating "USCIS Fee Wolf Case."
During the hearing, Respondent conceded that this transaction
was violative of trust account rules.
October 31, 2013, Respondent's trust account had a
negative balance of $11.20. The trust account remained in
that status for the next five months until March 31, 2014,
when her ending trust account balance was $36.00. Respondent
conceded that during the period of her CDA or Amended CDA,
she neglected to note clients' names on the majority of
her checks and deposit slips.
Court has original and complete jurisdiction over attorney
disciplinary proceedings." Attorney Grievance
Comm'n v. Barton, 442 Md. 91, 119, 110 A.3d 668, 684
(2015) (citations omitted). "Bar counsel ha[s] the
burden of proving [the] allegations in the disciplinary
petition by clear and convincing evidence." Attorney
Grievance Comm'n v. Edib, 415 Md. 696, 706, 4 A.3d
957, 964 (2010). See also Md. Rule 16-757(b)
("The [Commission] has the burden of proving the
averments of the petition by clear and convincing
conduct an independent review of the record and accept the
hearing judge's findings of fact unless they are clearly
erroneous. See Barton, 442 Md. at 119, 110 A.3d at
684 (citation omitted). Deference is accorded to the hearing
judge's findings, who is in the best position, as the
fact-finder, to assess the credibility of a witness. See
Edib, 415 Md. at 706-07, 4 A.3d at 964. See
also Md. Rule 16-759(b)(2)(B) ("The Court [of
Appeals] shall give due regard to the opportunity of the
hearing judge to assess the credibility of witnesses.").
"Findings of fact to which neither party takes exception
may be treated by us as conclusively established."
Edib, 415 Md. at 707, 4 A.3d at 964. See
also Md. Rule 16-759(b)(2)(A).
if exceptions are filed, "the Court of Appeals shall
determine whether the findings of fact have been proven by
the requisite standard of proof" outlined in Md. Rule
16-757 (b). See Md. Rule 16-759(b)(2)(B).
We review de novo, the hearing judge's
conclusions of law. See Edib, 415 Md. at 707, 4 A.3d
at 964. See also Md. Rule 16-759(b)(1) ("The
Court of Appeals shall review [de novo] the
[hearing] judge's conclusions of law.").
Findings of Fact
Counsel does not except to any of the hearing judge's
findings of fact. However, Respondent excepts to the findings
relative to her interactions with Commission Investigator,
Mr. Karr. Respondent contends that her exhibits evidenced a
series of communications with Bar Counsel, reflecting that
she asked whether Mr. Karr could provide questions in advance
to ensure that the interview "was productive and went
smoothly." Respondent asserts that she did not refuse to
meet with Mr. Karr, although the hearing judge adopted the
position that Bar Counsel and Mr. Karr decided that
Respondent would provide a statement under oath, in lieu of
her meeting with Mr. Karr.
shall overrule Respondent's exceptions. Although the
evidence does not reflect that Respondent refused to meet
with Mr. Karr,  it does demonstrate that she did request
questions "ahead of time, " which prompted the
alternate resolution agreed upon by Ms. Stanton and Mr. Karr.
In response to her request, Ms. Stanton advised, in part:
You advised Commission Investigator, [Mr.] Karr that you
would not sit for an interview unless you were provided with
written questions in advance. The Maryland Rules do not
require us to provide respondents with written questions
prior to interviews.
Pursuant to [Md.] Rule 16-732, we are requesting that you
attend a Statement under oath for this matter. . . .
the hearing judge's findings that 1) Respondent
"inquired whether Mr. Karr would provide her with
written questions prior to being interviewed[;]" 2) Mr.
Karr subsequently advised that this was not standard
protocol; and 3) Mr. Karr and Ms. Stanton agreed that
Respondent would provide a statement under oath in lieu of an
interview, were consistent with the evidence.
excepts to the hearing judge's findings regarding the
extent of her communications with clients, as reflected in
her March 17, 2014 correspondence to Bar Counsel. She
contends that those client communications began on November
26, 2013, and during that time, the averments were accurate,
with the exception of Ms. Sewell-Carpenter. Although
Respondent concedes that she neglected the Sewell matter, she
nonetheless avers that she did not have a duty to Ms.
Sewell-Carpenter because she "acted on her own"
without Respondent's knowledge when she filed motions
overrule Respondent's exceptions. As an initial matter,
the fact that Ms. Sewell-Carpenter filed motions pro
se, is of no consequence to the hearing judge's
findings that she failed to advise Ms. Sewell-Carpenter about
the January 2014 hearing-after receiving notification from
the court. Moreover, the December 5, 2013 e-mail to Bar
Counsel, Respondent stated:
I have already discussed the matter with most of my clients
and am in the process of discussing it with the rest. . . .
Respondent references the March 17 correspondence to Bar
Counsel, it was Respondent's December 5 e-mail that the
hearing judge relied upon in determining that Respondent
misrepresented the client communications regarding their
cases. Respondent neglected to correct any prior
misrepresentations in the March 17 correspondence.
Additionally, Respondent conceded that she neglected the
Sewell matter, although she remained counsel of record until
she withdrew her representation in March 2014.
excepts to the hearing judge's findings regarding initial
conversations with Ms. Sewell-Carpenter, where the hearing
judge stated, in part, "Ms. Sewell[-Carpenter] advised
Respondent of the judgment, but Respondent never informed Ms.
Sewell[-Carpenter] that she had to file an appeal, or a
motion to revise judgment, within thirty days of the
judgment." Respondent contends that if Mr. Karr's
statements in his interim report are believed, his interview
with Ms. Sewell-Carpenter in March of 2014 reflects that
Respondent was not hired until after her trial and entry of
judgment on November 27, 2012, and that her $1, 500 fee
payment was not made until February 23, 2013. Respondent